Island Creek Coal Co.

ISLAND CREEK COAL CO. Island Creek Coal Company and United Mine Workers of America District 31. Cases 9-CA- 23181 and 9-CA-23663 July 14, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 30, 1987, Administrative Law Judge William F. Jacobs issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent unlawfully refused to bargain with the Union over its decision to subcontract work at its Tioga Surface Mine to another company. We disagree with that finding. In our view, the Respondent fully complied with its statutory duty to bargain over subcontracting. The collective-bargaining agreement in effect at the time the Respondent subcontracted the work in question contained detailed provisions concerning the subcontracting of mining operations, referred to in the contract as "leasing, subleasing and licensing out of coal lands." The contract provides for the circumstances and conditions under which subcon- tracting will be permitted and, as is the case with most of the contract's substantive provisions, pro- vides that disputes are to be settled by agreement or by use of a "Settlement of Disputes" procedure culminating, where necessary, in arbitration. In bare outline, the contract prohibits subcon- tracting that is for the purpose of avoiding other provisions of the contract or that results in laying off the Employer's employees. Otherwise, subcon- tracting is permitted, provided that the subcontrac- i In finding that the judge properly rejected the Respondent's confi- dentiality defense to the allegation of refusal to provide the Union with information it had requested , we note that the Respondent did not assert its claim of confidentiality until shortly before the hearing in this pro- ceeding, and did nothing to test the Union's willingness to treat the infor- mation in a confidential manner The Union's representative, on the record of this proceeding, explicitly pledged to honor the confidentiality of the information Absent proof that the Union was unreliable in respect- ing confidentiality agreements, the Respondent's failure to test its willing- ness to treat the information confidentially weighs heavily against its de- fense Pertec Computer Corp., 284 NLRB 810 (1987) In addition to the judge's reasons for finding the Respondent 's offer of alternatives to the form of information requested by the Union to be inad- equate, we find that, in any event, the Respondent's delay in offering the information in any form until the eve of the trial, constituted an unlawful refusal to bargain Interstate Food Processing Corp, 283 NLRB 303 (1987), EPE, Inc, 284 NLRB 191 (1987) 851 tor agrees to offer employment first to the Employ- er's qualified employees who are on layoff status.2 When the subcontracting that gave rise to the in- stant charge occurred, a unit employee filed a grievance that closely paraphrased the language of the first paragraph of the applicable contract provi- sion. The grievance alleged that the Respondent "conveyed, leased, transferred or assigned its Tioga Strip [mine] . . . in an attempt to avoid the appli- cation" of the contract. The charge filed shortly thereafter by the Union alleged, inter alia, that the Respondent assigned, transferred, or conveyed "its Tioga Surface Mine to another employer in order to . . . escape its obligations pursuant to the collec- tive bargaining agreement." The complaint that subsequently issued and is before us, however, al- leges only an unlawful failure to give the Union prior notice and an opportunity to bargain about the Respondent's subcontracting the work at its Tioga Surface Mine. And it is that subcontracting issue alone that was litigated here. Our analysis of the entire course of events convinces us that when the parties reached agreement over the subject of subcontracting in their 1984 contract the Respond- ent fulfilled its affirmative obligation to bargain over that subject for as long as the agreement re- mained in effect.3 Thus, the parties have agreed specifically on their respective rights and duties concerning subcontracting. By operation of Section 8(d), the parties' substantive agreement relieved the Respondent of the duty to bargain further over the terms on which and the manner in which subcon- tracting could be done. Consequently, the General Counsel's case is fully rebutted by the established fact that the Respondent bargained to agreement over this subject. The only extent to which we find it necessary to interpret the contract is to deter- mine, as we have, that it is intended to cover the situation that developed when the Respondent chose to exercise its asserted right to subcontract.4 Accordingly, we dismiss the allegation that the Respondent failed and refused to bargain over sub- contracting in violation of Section 8(a)(5) of the Act.5 2 Sec. 1A(h) of the contract, covering this subject, is reproduced in its entirety as "Appendix B" to this Decision and Order 2 We contrast this "affirmative" duty with the negative duty, described in Sec 8(d) of the Act, not to terminate or modify the contract without meeting the conditions specified in that subsection No violation of that negative duty is alleged in the complaint, nor was such issue litigated. 4 The Union's representative testified at the hearing that the contract permitted subcontracting under certain circumstances but required the Employer to notify the Union This accords with our reading of the appli- cable contract language 5 The Respondent argues that we should defer this refusal-to-bargain allegation to the grievance-arbitration procedure However, the Respond- ent first raised this contention in its brief to the judge This was not a timely assertion of the issue See United Technologies Corp, 274 NLRB 504 (1985), and cases cited there 289 NLRB No. 121 852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Island Creek Coal Company, Craigsville, West Virginia, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to provide a complete copy of the contract between Island Creek Coal Company and Magnum Mining Company and cost sheets for the Tioga Surface Mine operation for the 18-month period immediately preceding the Tioga Surface Mine's closure in 1979. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Furnish to the Union a complete copy of the contract between Island Creek Coal Company and Magnum Mining Company and cost sheets for the Tioga Surface Mine operation for the 18-month period immediately preceding the Tioga Surface Mine's closure in 1979. (b) Post at its facilities in Craigsville, West Vir- ginia, copies of the attached notice marked "Ap- pendix A."6 Copies of the notice, on forms provid- ed by the Regional Director for Region 9, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately on receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to furnish United Mine Workers of America District 31 with information relevant and necessary for the proper prosecution of grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL furnish United Mine Workers of America District 31 with complete copies of our Tioga Surface Mine contract with Magnum Mining Company and cost sheets for the Tioga Surface Mine operation for the 18-month period immediate- ly preceding its closure in 1979. ISLAND CREEK COAL COMPANY APPENDIX B Section (h) Leasing, Subleasing and Licensing Out of Coal Lands (1) The Employers agree that they will not lease, sub- lease or license out any coal lands, coal producing or coal preparation facilities where the purpose thereof is to avoid the application of this Agreement or any section, paragraph or clause thereof. Licensing out of coal mining operations on coal lands owned or held under lease or sublease by any signatory operator hereto shall not be permitted unless the licens- ing out does not cause or result in the layoff of employ- ees of the Employer. (2) For purposes of lawfully preserving and protecting job opportunities for the Employees working or laid off from a particular operation covered by this Agreement, and to assure that work opportunities are not eliminated by lease or license arrangements, the Employer agrees that it will not lease, sublease, or license out coal mining operations which at any time were in operation by that Employer and covered by this Agreement, unless the conditions set forth in the following paragraph are satis- fied: Leasing, subleasing or licensing out of coal mining op- erations covered by this Agreement shall be permitted where the lessee-licensee agrees that all offers of employ- ment by such lessee-licensee shall first be made (on the basis of mine seniority) to the Employer's classified and laid-off employees at the mine who have not secured regular employment at any other operation of the Em- ployer covered by this agreement, if such employment at the leased, subleased or licensed out operations is for jobs of the nature covered by this agreement, and if such employees are qualified for such jobs. The lessee- licensee shall not be required to make more than one such offer of employment to each such employee. (3) Acceptance or rejection of such an offer of em- ployment made by a lessee-licensee or any personnel action between the employee and lessee-licensee shall not affect such employee's panel rights with the Employer as established by this agreement. ISLAND CREEK COAL CO. 853 (4) Any dispute regarding the rights of employ- ees secured by subsection (2) above shall be re- solved between the prior employer and the Em- ployee under Article XXIII of this agreement. The Employer agrees that it will reserve in any lease, sublease or license subject to this section the ability of the Employer to remedy any fording as to non- compliance of an employee's right to be considered for employment opportunity as provided herein. (5) The prior Employer shall not be a guarantor or be held liable for any breach of the lessee-licensee or its hiring or bargaining obligations or the terms of any agreement between the Union and the lessee-licensee. (6) Within ten (10) days after the lease, sublease, or li- censing out of any coal producing or coal preparation fa- cilities, but in any event prior to the time that any classi- fied work commences, the Employer shall provide notice thereof to the appropriate district president. Such notice shall disclose the identity of all parties to the transaction, the location of the facilities affected thereby, and the identity of the coal producing or coal preparation facili- ties affected thereby. (7) These provisions (Article IA(hX2) through (6)) shall not be construed to diminish any rights of employ- ees or the Union established in any other provision of this Agreement, including but not limited to the succes- sorship clause or Article IA(h)(1). Janette Johnson, Esq., for the General Counsel. J. Steve Warren, Esq. (Jackson, Lewis, Schnitzler, and Krupman), of Greenville, South Carolina, and Paul B. Lindermann, Esq. (Jackson, Lewis, Schnitzler and Krup- man), of Atlanta, Georgia, for the Respondent. Jerry Miller, of Fairmont, West Virginia, for the Charg- ing Party. DECISION STATEMENT OF THE CASE WILLIAM F. JACOBS, Administrative Law Judge. This case was tried before me on 15 and 16 October 1986 at Charleston, West Virginia. The charge in Case 9-CA- 23181 was filed on 5 June 19861 by United Mine Work- ers of America, District 31 (the Union). The charge in Case 9-CA-23263 was filed by the Union on 26 June. The consolidated complaint issued 28 July alleging that Island Creek Coal Company (Respondent or the Compa- ny) violated Section 8(a)(1) and (5) of the National Labor Relations Act by entering into a contract with an- other company for the mining of coal at a site that had previously been mined by employees of Respondent in a unit represented by the Union without giving prior notice to the Union or affording the Union an opportuni- ty to negotiate and bargain concerning such acts or the effects; and by refusing to furnish certain information to the Union concerning the contracting out of unit work. Respondent, in its answer to the consolidated complaint, denied the commission of any unfair labor practices. i All subsequent dates are 1986 unless otherwise noted All parties were represented at the hearing and were afforded full opportunity to be heard and present evi- dence and argument. The General Counsel and Respond- ent filed briefs. On the entire record, my observation of the demeanor of the witness, and after giving due consid- eration to the briefs, I make the following FINDINGS OF FACT2 The Respondent is a coal mining company with under- ground and surface mines and other facilities located in various States including West Virginia. Respondent sometimes employs its own employees to work its mines, but also subcontractors with other employers to work its mines using the subcontractors' own employees to mine the coal. One location where Respondent has mining rights is at the Tioga surface mine located near Craigs- ville, West Virginia. Respondent first mined at Tioga in late 1971. At that time it employed its own employees, all of whom were represented by the Union. These employees not only mined coal but also did whatever reclamation work was necessary and repaired and maintained equipment. Re- spondent continued to operate the Tioga surface mine in this fashion until 1979. During the 1970s Respondent worked the Tloga Mine full time, stripping during two shifts and loading on the third shift. Equipment used included endloaders, bulldoz- ers, and a shovel. Employees included equipment opera- tors, a drill crew, powdermen, mechanics, welders, elec- tricians, and maintenance personnel. Coal mined at Tioga was sent to a preparation plant to be washed. Respond- ent closed down the Tioga surface mine in March 1979. After closing down the Tioga surface mine, Respond- ent kept four or five unit employees at the minesite to do reclamation work. Their task was to fill in the pit, plant grass seed, and put the land back into a contour similar to that which it had been before being mine. The recla- mation work was completed, for the time being, in June 1979 after which Respondent transferred the remaining employees to one of its other facilities. In April 1984 Respondent brought 10 or 11 bargaining unit employees back to the Tioga site to do additional reclamation work. They removed topsoil, mined some coal, then covered the pit and seeded. The removal of coal during this period was merely incidental to the rec- lamation work and not a standard coal mining operation. In 1985 Respondent obtained a new permit to mine coal in a 170-acre area at Tioga immediately adjacent to the area where its bargaining unit employees had mined during the 1970s. The permit was obtained because Re- spondent had received a small order for 30,000 to 40,000 tons of coal and because the Department of Natural Re- sources had brought to Respondent's attention the fact that there was a necessity for further reclamation, at the old Tioga mining site. With these factors in mind, it was Respondent's plan to mine coal on the newly acquired 170-acre site and use the overburden from the site to re- 2 The complaint alleges and the answer admits that the Board has ju- risdiction and that the Union is a labor organization within the meaning of the Act 854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD claim the adjacent, previously mined Tioga surface site thus cutting the cost of reclamation by partially paying for it through the mining and selling of coal from the new site. To put its plan into operation Respondent brought back to Tioga 10 or 11 bargaining unit employees to mine coal and to reclaim land. Respondent pursued its course of reclaiming and mining for about 6 or 7 weeks but then determined that it was not economically feasible to continue mining. When it lost the coal order on which it was relying to help reduce the cost of reclamation, it shut down the mine and laid off or transferred the bar- gaining unit employees to other locations. In late 1985 Respondent began to give considerations to awarding a contract to an outside company to mine coal at the Tioga site on the 170 acres that it had itself been mining in 1985. This consideration was based on the fact that certain of Respondent's officials became aware of the availability of a short-term spot market contract for coal at a production level of 700 to 800 tons per day, a level far smaller than Respondent ordinarily pro- duced.3 By February 1986 it was determined that the coal at Tioga could serve the requirements of the spot market contract and several coal companies were con- tacted for the purpose of contracting out the coal mining operation to one of them. Shortly thereafter, an official of Magnum Mining Company, Russell Coleman, visited the site, inspected the grounds and available equipment, and advised Respondent that it would be willing to un- dertake the project. Roy Dotson, Respondent's manager of contract coal, northern division, testified that he had considered several contractors but finally chose Magnum after talking to Coleman. The decision as to which con- tractor to use, according to Dotson, was based on the relative financial condition of each, the kind of equip- ment they intended to use, and the price they were asking. The price paid to any potential contractor de- pended on how much Respondent could obtain for the coal when it sold the coal to a customer. The sale price would have to cover the contractor's price. In April Respondent and Magnum signed a contract that required Magnum to mine Tioga coal and to sell and deliver it to Respondent's Gully Eagle preparation plant where it was commingled with coal produced by other mining contractors and sold to Respondent's customers, sometimes in the raw state, sometimes after being washed. Under the contract Respondent provided Magnum certain engineering services, surveys, the use of equipment, repair services if desired, and supplies if needed. If Magnum required repair or supplies from Re- spondent, it was understood that Magnum would be billed for such. After the signing of the contract Magnum began mining coal at Tioga. Respondent's 170-acre permit to do 8 According to Claude Simmons, Respondent's mine foreman, when Respondent decides to contract out rather than mine with its own em- ployees, the decision is based on an internal cost analysis. In the instant case the decision to contract out the Tioga surface mine operation was based on the short term, small production nature of the contract It was decided that rather than invest all the necessary moneys into the equip- ment that would be required to start up the operation, it would be better to contract the work to another mining company so was transferred to Magnum.4 Magnum used Respond- ent's equipment to mine the coal, the same equipment that had been used by Respondent's employees during previous excavations. Magnum paid a fee in order to use this equipment. Although Magnum could, under the con- tract, have Respondent repair this equipment, also for a fee, Magnum never chose to do so. Similarly, Magnum never purchased supplies from Respondent for its Tioga mining project although it could have done so. Also, after the signing of the contract between Re- spondent and Magnum, Respondent's management re- viewed the names of employees who had formerly worked at the Tioga surface mine, in anticipation of Magnum's having to recall these employees, in accord- ance with the labor agreement in effect at the time, and found 14 names of bargaining unit employees on the layoff panel list. Of these 14 employees, 10 were working at the time for Respondent at its other facilities including William Hayes who would eventually file the grievance that would, in turn give rise to the filing of the charge in the instant proceeding. The other four bargaining unit employees laid off from the Tioga surface mine were sent letters prepared in the office of Donald S . Basset, Respondent's manager of industrial/employee relations for the northern division, and signed by Coleman on behalf of Magnum after Coleman had been advised by Simmons that there was a contractual obligation to recall these employees to Tioga. Coleman reviewed the letters before they were mailed. When actual work began at the Tioga surface mine, Magnum immediately ran into trouble. At the start Magnum had no new equipment. In fact it had virtually no equipment at all. Rather, it used the exact same equip- ment, the same bulldozers and endloaders , Respondent's equipment, that had been used by bargaining unit em- ployees working at the Tioga surface mine back in 1985. Exceptions were two augers, which Magnum later brought on site, started up, but may never have used.5 The Island Creek equipment used by Magnum at Tioga was old and in need of repair. Some of the repair work on this equipment was performed by the four to six em- ployees hired by Magnum to work at Tioga. Other re- pairs were performed by independent outside contrac- tors. Though the equipment belonged to Respondent, none of the repairs were performed by Respondent's em- ployees. It is conceded that the repair work performed at Tioga by Magnum and independent contractors would have been performed by bargaining unit employees under the contract. The frequent breakdown of the equipment at Tioga re- sulted in substantial downtime for Magnum. The repair work was paid for by Magnum, and Respondent was not billed although it was Respondent's equipment that was undergoing repairs. The frequency of repairs and result- ant downtime caused Magnum to fall far below the 700 4 The permit was, at some time, modified to allow the use of augers No such allowance was permitted under the old permit but there was a stipulation on the Island Creek/Magnum contract that permitted the use of augers Respondent also owned an auger, which was an old model and had never been put into use ISLAND CREEK COAL CO. 855 tons of daily production required under the contract. In some months Magnum averaged only 75 tons per day. Magnum's failure to meet its quota and the reasons there- for were closely monitored and reported to Respondent by Claude Simmons, its overseer on the project. Before actually beginning work at the Tioga surface mine, Coleman visited the union office in Craigsville, West Virginia, and advised the Union's representative there that Magnum was going to take over the Tioga surface mine operation. A meeting was scheduled for 9 May between Coleman and the Union's vice president, Jerry Miller. At the meeting, attended by Miller, Cole- man, and another union representative, Coleman advised Miller that he had entered into an oral agreement with Respondent that permitted Magnum to operate at the Tioga surface mine; that the oral agreement was being reduced to written form; that Magnum would have a million tons of recoverable coal to mine under the con- tract; that Respondent would require Magnum to furnish it with 700 tons of coal per day; that Respondent would pay Magnum $12.50 per ton for the coal it mined at Tioga; and that Magnum would have to pay the hauling bill for transporting the coal from the minesite to where Respondent wanted the coal dumped out of the $12.50 per ton agreed on. Coleman informed Miller that he had 4 employees working for the past 2 weeks repairing the equipment; that the equipment was in such a state of dis- repair that it was going to cost him $30,000 to $40,000 to put it in operable condition; that he had hired Lewis Ma- chinery Company to help him overhaul Respondent's equipment; that he planned to call 2 more employees to work the following week; that at the peak of production Magnum would employ 20 employees; that he would not object to signing an agreement but wanted some excep- tions to the NBCWA;6 that his agreement with Respond- ent required that if he became signatory to a union con- tract, Magnum, itself, would have to pay its own contri- bution into the pension and trust funds; that as a small operator, he could not afford to pay into the pension and trust funds out of his $12.50 per ton as required by the NBCWA;7 and that he would have to be selective about employees he would be hiring. Regarding this last matter, Miller told Coleman that there were a lot of Re- spondent's employees who had panel rights at the Tioga operation. Coleman disagreed stating that he did not think that he was obligated to hire any of those people and that he had been told by Respondent that Magnum was required to hire just one employee previously em- ployed by Respondent.' Prior to the 9 May meeting between Coleman and Miller, no one from Respondent ever advised the Union of its intention to subcontract out the Tioga surface mine operation. Similarly, Respondent never offered to bar- gain with the Union concerning its decision to subcon- tract the Tioga operation to a third party. When Magnum first began working the Tioga surface mine, its operation was discovered by William Hayes, a bargaining unit employee of Respondent who had worked at Tioga on previous occasions and was again working there temporarily on reclamation work when Magnum was present. On 9 May Hayes sought to bring Magnum's presence at Tioga to the attention of Jerry Miller who by that time was already aware of the situa- tion. Hayes felt that he should have been offered em- ployment by Magnum because of his seniority at Tioga. Hayes and Miller discussed application of the contract to the situation, and it was decided that Hayes should file a grievance. On 19 May a grievance was filed by Hayes:9 The employer has conveyed, leased transferred or assigned its Tioga Strip to Magnum Mining in con- tradiction to the NBCWA of 1984 and in an attempt to avoid the application of said agreement. We are demanding that the employer immediately cease its improper actions and make whole any damaged em- ployees, the Union and the Health and Retirement Funds. The grievance was filed with Simmons who took the po- sition that Respondent had not violated the contract, thus denying the grievance. On 21 May, Miller sent a letter to Respondent's divi- sion manager, Donald G. Bassett, industrial and employ- ee relations, requesting a copy of the contract between Respondent and Magnum Mining Corporation covering the Tioga surface mine. Miller advised Bassett that the contract was necessary to enable the Union to effectively process the grievance, which Hayes had filed on 19 May. Respondent did not immediately furnish the Union with a copy of the requested document. On 30 May the Union and Respondent met in order to consider the grievance at its third step. 10 At this meeting Miller accused Respondent of violating article 1(A)(h)(1) of the contract by contracting out to Magnum Mining Corporation work that should have been done by its own employees in order to avoid application of the con- tract. Further, Miller accused Respondent of violating article l(A)(h)(6), of the contract by failing to furnish the Union with a copy of Respondent's contract with Magnum and by failing to give the Union notice of the agreement. Finally, Miller charged that Respondent had violated the contract when it failed to require Magnum to assume Respondent's obligations under the successor- ship provision of the contract. Miller explained to Re- spondent's representatives his understanding of the ar- rangements between Respondent and Magnum as ex- plained to him by Coleman at the earlier meeting. He argued that the $12.50 per ton that Respondent had agreed to pay Magnum was far less than the cost per ton to Respondent mined at Tioga in 1979, and that this fact proved that Respondent had contracted with Magnum to avoid application of the contract agreed to between the Union and Respondent. 6 National Bituminous Coal Wage Agreement 7 Miller testified that in the past he had agreed to grant relief to other employees who were unable to meet the pension fund requirements 8 Magnum subsequently sent a letter to that one person but he never went to work for Magnum 9 The language was Miller's. 10 The parties scheduled the meeting to take place at the Union's of- fices Hayes, Miller, and Chapman represented the Union while Bassett and Simmons represented the Respondent 856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Miller advised Bassett that the Union intended to go forward with the grievance and gave him a handwritten request for certain information which he claimed would enable the Union to proceed. Bassett in turn asked Miller to have his request typed up and mailed to him. Miller agreed. The information requested was 1. A complete accounting of the repairs to the equipment on the Tioga Strip which were per- formed at the direction of Magnum Mining. This accounting should include an explanation of the repair work, the number of people used, the total hours worked by each person, the dates on which the work was performed, and the total cost of the work. 2. A copy of the cost sheet for the Tioga Surface Mine for the last month during which coal was pro- duced at Tioga and for the seventeen (17) months preceding the last month of production. Please do not count the months during which coal was pro- duced incidental to reclamation work required by state or federal regulations. During the meeting of 30 May, Miller explained to Bassett why he needed the information. He told Basset that the Tioga unit work force had acquired jurisdiction over repair and maintenance of the Tioga surface mine equipment. He advised Bassett that in order to determine whether the repair and maintenance on this equipment had been contracted out improperly, it would be neces- sary for the Union to know exactly what had been done. The Union had to know what work subcontractors had done at Tioga in order to decide if the Union's jurisdic- tion over repair and maintenance work had been breached. The extent of repair and maintenance work performed had to be known in order to show the arbitra- tor the extent of damage to the Union and its member- ship. Miller testified that, at the time, he had reason to believe that Magnum was doing unit repair work. Regarding the cost sheets, Miller told Bassett that the Union needed these to show that Respondent's produc- tion costs per ton in 1979 far exceeded the amount of money it was paying Magnum to mine coal under the contract it signed with Magnum in 1986 and that this would prove its charge that Respondent was violating section 1(A)(h)(1) of the NBCWA of 1984. Bassett told Miller that he would call him once Re- spondent's attorneys had made a decision concerning the Union's 21 May request for a copy of the Island Creek/Magnum Mining Corporation contract. Bassett did not, at this time, advise Miller that the information he was seeking was considered confidential although he testified that this was one of the reasons he decided to deny the Union the requested information. Regarding the Union's request for a complete account- ing of the repairs to the equipment on the Tioga strip, which were performed at the direction of Magnum, Bas- sett testified that Respondent had no information con- cerning any such repairs and did no repairs, itself, on that equipment. Regarding the cost sheets requested by the Union, Bas- sett testified that Respondent refused to provide the Union with this information because a great deal of time had passed since the 1977-1979 period and conditions had changed since them so that the data requested was no longer applicable to the problem at hand. In explana- tion of how conditions had changed, Bassett testified that the provisions of the applicable wage agreement had changed; the conditions affecting the surface mining of coal had changed; and the price obtained for mined coal had changed. These changes, in turn, affected the cost per ton that it would take to mine coal. On 3 June Bassett replied by letter to Miller's 21 May request for a copy of Respondent's contract with Magnum. Bassett stated that he would be willing to review the contract with Miller in Bassett's office on a mutally agreeable date. At that time, according to the letter, Miller would be permitted to "examine all perti- nent information contained in the contract" but would not be provided with copies of the contract. On the same date Miller mailed to Bassett a typewritten request for the information he had asked for at the 30 May griev- ance meeting. He also mailed to the Board, on the same date, a copy of the charge in Case 9-CA-23181. The Region docketed the charge on 5 June.' 1 On 13 June Miller met with Bassett in the latter's office. Bassett permitted Miller to review the entire con- tract and to take notes therefrom. The contract, howev- er, was incomplete in that it disclosed none of the mone- tary figures. Missing were the dollar amounts that Re- spondent had agreed to pay Magnum per ton of coal mined; the dollar amounts that Magnum had agreed to place in a performance escrow account; the dollar amounts that Magnum had agreed to pay Respondent for the lease of its equipment; and the amount of money that Respondent was charging Magnum for electricity. Miller advised Bassett that he was not satisfied with the infor- mation proffered by the Respondent. He informed Bas- sett that he felt that Respondent had committed a breach of contract and that Union was entitled to a complete copy of the contract in order to present its case at arbi- tration. Bassett replied that he would relay Miller's mes- sage to Respondent's attorneys. About the time of, or shortly after, Miller's meeting with Bassett, the Union sought from Coleman a copy of Magnum's contract with Respondent. Coleman advised the Union's representative that if he had a copy of the contract he would forward it to Miller. On 19 June the Union received from Coleman, not a copy of the con- tract, but a copy of an invoice covering the period June I through 15 showing how many tons of coal had been mined by Magnum for Respondent, the type of coal, the price paid per ton, the charges for power, deductions from the escrow account, and the amount of UMWA royalties paid per ton. A similar invoice was later re- ceived from Coleman covering June 16-30. On 26 June the Union filed the charge in Case 9-CA- 23263 alleging additional violations of Section 8(a)(1) and " The charge alleged violations of Sec 8(a)(1), (3), and (5) The Union charged Respondent with assigning, transferring, or conveying its Tioga surface mine operation to another employer in order to escape its obligations under the collective-bargaining agreement ISLAND CREEK COAL CO. 857 (5) basing its charge on Respondent's refusal to supply it with the information requested on 21 and 30 May. In late June Respondent, filed an application to change the permit covering the Tioga surface mine operation to enable the use of augers on the minesite. The decision to bring augers to the site may have been based on legiti- mate business considerations . However, in light of the outstanding charges against it, Respondent may have de- cided to bring the augers to the site in order to give the operation a superficial cosmetic change in appearance and to rely on such change in its defense to the outstand- ing charges filed against it. At any rate the augers were not brought to the Tioga surface mine until some time following August. On 7 July Bassett sent to Miller a copy of the Magnum/Island Creek contract which Miller had exam- ined at their 13 June meeting. Like the copy of the con- tract reviewed by Miller earlier, the one sent to him on 7 July was incomplete in the same respects as the earlier one. Although Miller subsequently renewed his request for the information asked for earlier, including a com- plete contract with financial data, Respondent has re- fused to supply information. On 13 October, the day before the hearing in the in- stant proceeding, Bassett sent to Miller a position state- ment and an alternative offer to the information request- ed. As to the accounting of repairs to the equipment on the Tioga strip, Bassett stated that Respondent was not in possession of such information; as to cost sheets for the 1977-1979 period Bassett reiterated his position that the information was irrelevant; as to the Union's request for a complete copy of the contract Bassett reiterated his position that the financial figures were confidential. In the alternative, however, Bassett offered to compare the cost sheets for the 18-month 1977-1979 period with the price per ton that Respondent agreed to pay Magnum and to provide the Union with the difference between the figures. Bassett further offered to provide the Union with the items included in the cost sheets and agreed to have a mutually acceptable third party confirm the accu- racy of the figures. The record does not reflect what reply, if any, the Union made to Respondent's 13 Octo- ber communication. The Issues The following issues are: 1. Whether Respondent violated Section 8(a)(l) and (5) of the Act by its failure to notify and bar- gain with the Union prior to its decision to subcon- tract its Tioga surface mine Operation to Magnum. II. Whether the Respondent violated Section 8(a)(1) and (5) of the Act by its failure to provide the Union with information necessary and relevant to the Union's processing of its grievance: A A complete copy of the Island Creek/- Magnum contract. B. A copy of the sheets for the Tioga Surface Mine for the last 18 months of production, 1977 to 1979. C. A complete accounting of the repairs to the equipment at the Tioga Surface Mine which were performed at the direction of Magnum Mining Company. Analysis and Conclusions 1. FAILURE TO NOTIFY AND BARGAIN The above facts, digested, indicate that Respondent first mined at Tioga in 1971, utilizing its own employees, all represented by the Union. These employees, besides mining coal, did reclamation work as well as repair and maintenance work on the equipment. They performed these duties in accordance with the existing collective- bargaining agreement until 1979. During the 1970s the Respondent worked the Tioga surface mine full time, stripping during two shifts and loading on the third shift. Equipment used included end- loaders, bulldozers, and a shovel. Respondent's employ- ees included equipment operators, a drill crew, powder- men, mechanics, welders, electricians, and maintenance personnel. Coal mined at Tioga was sent to a preparation plant to be washed. After closing the mine in June 1979, Respondent did not do any mining at Tioga except for a small amount incidental to some reclamation work, work which is not here in issue. In late 1985 Respondent became aware of the avail- ability of a short-term spot market contract for coal at a production level of 700 to 800 tons per day. An internal cost analysis was undertaken to determine whether it would be more beneficial for the Company to undertake the mining at Tioga with its own unit employees or to contract out the mining to another mining company. It was determined that because the contract would be short term and the production small, it would be better to con- tract out the operation to another company rather than invest all the necessary moneys into equipment required to startup the operation. Several mining companies were henceforth contacted to see if any of them would be in- terested in mining the Tioga coal. The decision concern- ing whether to subcontract at all was strictly a financial consideration as was the choice of which company to subcontract the operation to. Finally, as noted, Magnum was chosen as the subcontractor and the contract was signed in April 1986. Subsequently, Magnum mined coal for Respondent, the coal being hauled to Respondent's preparation plant where it was commingled with the coal of other subcontractors, then washed or sold raw by Re- spondent to its customers. Under its contract with Magnum, Respondent made available to that subcontrac- tor the same equipment and services that it had made available to its own employees in the 1970s. The work performed by Magnum's employees was the same type of work performed at the same site in the 1970s by Re- spondent's own unit employees.12 This included both the actual mining of coal and the repair and maintenance of the equipment by Magnum's employees and the sub-sub- contracting by Magnum of some repair work. Magnum's 12 The augers brought to the site by Magnum are of little or no signifi- cance . Since work began in April and was scheduled, at the time of the hearing, to be completed in October, and since the augers were not deliv- ered to the site until August, they were either never used or were used very little 858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD production and its failure to meet its assigned quota was closely monitored by Respodent's managerial personnel just as it had monitored its own production at Tioga in the 1970s. The record clearly reflects, as alleged in the com- plaint, that Respondent entered into its contract with Magnum Mining Company for the mining of coal at the Tioga surface mine, which had been previously mined by employees of Respondent in the unit, and that it did so without prior notice to the Union and without having af- forded the Union an opportunity to negotiate and bar- gain as the exclusive representative of Respondent's em- ployees regarding such acts and conduct and the effects of such acts and conducts in violation of Section 8(a)(1) and (5) of the Act. As found in Fiberboard Corp., " the replacement of employees in an existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment is a statu- tory subject of bargaining under Section 8(d) of the Act. Respondent's decision, in the instant case, to subcontract instead of recalling laid-off workers was based on labor costs. There was no change in the nature or direction of the business since Magnum continued to operate the Tioga surface mine in the same manner as Respondent had done previously, with the same equipment. Respond- ent's decision regarding subcontracting was clearly ame- nable to possible resoultion through the collective-bar- gaining process. Indeed, the Union on other occasions had granted concessions to employees in order to reach a satisfactory agreement, and there is no showing in the in- stant case that negotiations could have resulted in agree- ment. Under the circumstance of this case Respondent's fail- ure to afford the Union an opportunity to bargain over its decision to subcontract and the effects thereof de- prived the Union of its rights guaranteed under the Act. Pennsylvania Energy Corp." Respondent thus violated the Act. II. RESPONDENT'S FAILURE TO PROVIDE A COMPLETE COPY OF THE ISLAND CREEK/MAGNUM CONTRACT Regarding the allegation that Respondent violated Section 8(a)(1) and (5) by refusing to furnish the Union with a complete copy of the Magnum/Island Creek con- tract the record reveals that Miller, on 21 May, sent a letter to Bassett requesting a copy of the contract, advis- ing him that the Union needed the document in order to enable it to effectively process the grievance filed by Hayes on 19 May. As noted, Respondent did not imme- diately furnish the Union with a copy of the contract. On 30 May, at the third-step grievance meeting Miller accused Respondent of violating article 1(A)(h)(6) of the contract by failing to furnish the Union with a copy of its contract with Magnum. Although the cited article does not, in fact, require Repondent to supply the Union with a copy of the contract in question, it is clear that Miller was, in effect, renewing his request for a copy. Bassett, on this occasion, advised Miller that he would call him once Respondent's attorneys had made a deci- ' 8 379 U S. 203 (1964) 14 274 NLRB 1153 (1985) sion on whether to furnish the Union with a copy of the requested document. On 13 June, Miller met with Bassett in the latter's office. On this occasion Bassett permitted Miller to review a copy of the Magnum contract and take notes from it. The document shown to Miller, however, was incomplete in that all monetary figures had been deleted. Miller objected to the fact that the document was incom- plete and insisted that the Union had to have the missing information in order to present its case at arbitration. Bassett again told Miller that he would relay Miller's message to Respondent's attorneys. After the Union filed its charge on 26 June based on Respondent's failure to provide it with the requested in- formation, Respondent on 7 July sent to Miller the same abridged version of the Magnum contract that he had been permitted to examine in Bassett's office. Although Miller subsequently renewed his request for a complete copy of the document including the monetary figures, Respondent has continued to refuse to supply the re- quested information. On the day before the hearing in the instant proceed- ing Respondent again refused to provide the financial figures contained in the Magnum contract because those figures were considered confidential in that "releasing that information could have significant adverse impact on our operations and our sales, particularly in this highly competitive market for coal." Rather than furnish the requested figures, Respondent offered, in the alterna- tive, to compare the cost sheets for the 18-month period requested by the Union with price per ton, the Company agreed to pay Magnum Mining Corporation and provide the difference between the figures to the Union. Re- spondent also offered to have a mutually acceptable third party confirm the accuracy of its figures. The Union has rejected Respondent's alternative offer. The General Counsel takes the position that the mone- tary figures contained in the Magnum contract represent the hardcore evidence necessary to convince the arbitra- tor that the grievance is meritorious. The Union plans to show that the figures contained in the contract, when compared with the 1977-1979 cost sheets, prove that Re- spondent subcontracted out the Tioga operation for purely financial reasons. This, in turn will prove, accord- ing to the Union's theory, that Respondent subcontracted out the Tioga operation solely to avoid the application of the 1984 NBCWA in violation of section IA(h)(1) of that collective-bargaining agreement. Respondent takes the position that the financial infor- mation contained in the Magnum contract is confidential and privileged because this information reflects Respond- ent's mining costs which in turn permits it to determine what it can bid on the spot and long-term contract market. Respondent posits that if competitors were to come into possession of this information they could de- termine what Respondent's bids might be and thereby underbid Respondent for other jobs. Further, Respond- ent argues that having one contractor know that another contractor has been offered more or less than itself, cre- ates havoc in the coal mining contractor business com- munity. ISLAND CREEK COAL CO. In NLRB v. Acme Industiral Co.,15 the Supreme Court dealt with a situation similar to the one here extant. There, a collective-bargaining agreement, which con- tained procedures for processing grievances culminating in compulsory, binding arbitration provided that it was respondent employer's policy not to subcontract work that was normally performed by employees in the bar- gaining unit. During the contract term certain machinery was removed from the plant, and in response to the Union's query respondent stated that there was no viola- tion of the agreement and barring exceptional or special circumstances should be furnished to the Union. The Respondent argues that the monetary figures con- tained in the requested contract are confidential and if made public would place it at a disadvantage in the very competitive coal contracting business. The record, how- ever, reflects that the Magnum/Island Creek contract was singularly unsuccessful and plagued with problems. The outmoded equipment used continuously broke down and Magnum was able to mine little more than 10 per- cent of the coal that had been contracted. Indeed, the project was in the process of being abandoned at the time the hearing was being concluded. I cannot believe that Respondent plans any similar operation in the future so that the monetary figures contained in the contract would be totally valueless to any competitor relying on them to outbid the Respondent. Ordinarily, where an employer transfers unit work to another company, the union is entitled to the information necessary for it to de- termine whether the transfer was in violation of the con- tract and to decide whether it should file a grievance and proceed to arbitration.16 If an employer refuses to make the requested information available because the informa- tion is confidential, the burden of proving confidentiality is on the employer.'' I do not believe the Respondent has done so in the instant case. Granting, arguendo, that the information requested was, in fact, confidential and Respondent did meet its burden of proving the confiden- tial nature of the information requested, still it is viola- tive of the Act for an employer to refuse to make the information available where there is no evidence that would show that if the information were made available, its confidentiality would, in some way, be abused.' 8 In the instant case, Miller made it clear on the record that if Respondent made the requested information available to him, he would use it for purposes of enforcing the con- tract through the grievance and arbitration proceedings and would not divulge the information to unauthorized third parties. With these considerations in mind, I find that Respondent violated Section 8(a)(1) and (5) by fail- ing to provide the Union with a complete copy of the Island Creek/Magnum contract. 15 385 U S 432 (1967) 16 Soule Glass & Glazing Ca v NLRB, 652 F.2d 1055 (1st Cit. 1981), Boston University, 210 NLRB 330 (1974) 17 Boston University, supra, E W Buschman Co, 277 NLRB (1985), Washington Gas Light Co, 273 NLRB 116 ( 1984) East Texas Fire Protec- tion Co, 265 NLRB 173 (1982) 18 Designcrojt Jewel Industries, 254 NLRB 791 (1981) 859 III. RESPONDENT'S FAILURE TO PROVIDE COST SHEETS FOR THE TIOGA SURFACE MINE FOR THE LAST 18 MONTHS OF PRODUCTION, 1977-1979 Regarding allegation that Respondent violated Section 8(a)(1) and (5) by refusing to furnish the Union with cost sheets for the Tioga surface mine for the last 18 months production, 1977-1979, the record reveals that Miller, at the meeting of 30 May, asked Bassett for a copy of the cost sheets in question and fully explained the Union's le- gitimate need for the information to adequately pursue its contractual rights through arbitration. Bassett refused to supply Miller with the requested cost sheets because the passage of time since 1977-1979 and the changes in working and economic conditions made the requested in- formation irrelevant. Miller, by letter dated 3 June, renewed his request for the 1977-1979 cost sheets. When the information was not forthcoming Miller, on 26 June, filed a charge with the Board based on Respondent's failure to produce this and the other information requested earlier. On 13 October, in a position paper furnished to Miller by Bassett, the latter reiterated Respondent's position re- garding furnishing the 1977-1979 cost sheets. In the al- ternative, however, Bassett offered to have Respondent compare the 1977-1979 cost sheets with the price per ton that the company had agreed to pay Magnum Mining Corporation and to provide the Union with the differ- ence. Bassett noted that although Respondent still felt that the information requested was irrelevant, the alter- native offer made sufficient information available to the Union for its purpose while still maintaining the confi- dentiality which had to be protected. Although Respond- ent had maintained all along that the cost sheet informa- tion was irrelevant, this position paper contained the first indication that it also considered the 1977-1979 cost sheets confidential. The General Counsel takes the position that the 1977- 1979 cost sheets, like the monetary figures contained in the Magnum contract, represent the hardcore evidence necessary to convince the arbitrator that the grievance is meritorious; that when the two are compared, it will prove that Respondent subcontracted out the Tioga op- eration for purely financial reasons, in turn proving that Respondent did so in order to avoid the application of the 1984 NBCWA in violation of section IA(h)(1) of that collective-bargaining agreement. Respondent, as more fully described above, takes the position that the request- ed information is irrelevant. In support of the position taken by the Union, the General Counsel cites Kris-Beth,"" in which the United States Court of Appeals for the Fourth Circuit found in favor of the union involved there, affirming the earlier arbitrator's decision. In that case, as here, the company contracted out certain mining operations. The union grieved the contracting, contending that the employer was motivated by a desire to avoid its collective-bargain- ing obligations under the National Bituminous Coal Wage Agreement. To prove its allegations the union in the Kris-Beth arbitration presented evidence of economic 19 4th Cir, February 27, 1986, unpublished 860 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD motivation which included a copy of the contract be- tween the employer and the contractor, which contained monetary figures and cost of production figures at mines operated by the employer. The court, in affirming the ar- bitrator's decision on behalf of the union, took special note that the arbitrator relied on the evidence adduced at the hearing to find economic motivation and a desire on the part of the company to avoid its obligations under the existing collective-bargaining agreement . The Gener- al Counsel argues convincingly that the information relied on by the union in Kris-Beth was relevant to that arbitration hearing and is therefore relevant to the planned arbitration of the issues involved in the current dispute between the parties herein since the issues in Kris-Beth and the issues sought to be arbitrated by the parties herein are virtually identical . I am persuaded that the requested cost sheets are relevant and necessary for the Union to pursue its right to arbitrate the issue of con- tract violation. Moreover, it is quite clear that the cost sheets that the Union intends to use as evidence in the forthcoming arbi- tration hearing are not accessible to it except through the Respondent. If Respondent is permitted to withhold this information, the Union's case before the arbitrator would seriously be undermined and Respondent will have suc- ceeded in preventing the Union from pursuing its rights under the collective-bargaining agreement to which both parties have agreed. As to Respondent's argument that the 1977-1979 cost sheets are no longer relevant because of the passage of time and the changes both in working and economic conditions, the General Counsel is correct in pointing out that this information, nevertheless, contains the most recent usable figures and therefore the most relevant fig- ures available. Regarding the changes in working condi- tions and in the economic situation in the coal mining in- dustry since 1977, these matters are more appropriate for the arbitrator to consider and weigh in rendering his de- cision on the ultimate issue. To determine, in advance, that these considerations preclude the use of the 1977- 1979 cost sheets at the arbitration hearing would deci- sively foreclose the Union from presenting its case to the arbitrator. I am not prepared to do this. Finally, Respondent argues that it has made an alterna- tive offer which should suffice for the Union's purposes. But what Respondent offers to do is to act as agent for the Union in presenting evidence in an arbitration hear- ing against itself. I see no reason why the Union should be forced to accept such an offer. The Union should be able to pursue its rights in a manner it deems most ap- propriate. Although Respondent has cited a number of cases where the Board or the courts have decided that the alternative information offered by the company would suffice, all cases cited are easily distinguishable on the facts.2° On the other hand the Board has frequently 20 Plough. Inc., 262 NLRB 1095 (1982); Emeryville Research Center Y. NLRB, 441 F.2d 880 (9th Cir. 1985); Minnesota Mining & MJk Co., 261 NLRB 27 (1982), affd sub nom. Oil Workers Local 6-418 v. NLRB, 711 F.2d 348 (D C Cir 1982) required an employer to provide financial information to a union where such information has proven relevant and necessary for the union to pursue its contractual obliga- tions and/or to determine whether to take a contractual issue to arbitration. 21 I shall recommend that Respond- ent be ordered to provide the Union with the requested cost sheets for the Tioga surface mine for the last 18 months of production, 1977-1979. IV. RESPONDENT'S FAILURE TO PROVIDE A COMPLETE ACCOUNTING OF THE REPAIRS TO THE EQUIPMENT AT THE TIOGA SURFACE MINE WHICH WERE PERFORMED AT THE DIRECTION OF MAGNUM MINING COMPANY Regarding this allegation the record reveals that Miller, at the meeting of 30 May, asked Bassett for a complete accounting of the repairs to the equipment at the Tioga surface mine, which were performed at the di- rection of Magnum Mining. Miller gave Bassett a com- plete and cogent explanation as to the reasons why the information was required . On 3 June Miller reiterated his request in writing. When the information was not forth- coming, Miller, on 26 June, filed a charge based on Re- spondent's failure to provide the requested equipment repair information . In its 13 October position statement Bassett stated that Respondent had no records or infor- mation concerning equipment repairs made at Tioga by Magnum. According to testimony provided by Respondent's witnesses, inquiries were made of knowledgeable mem- bers of its management concerning the existence of records that might shed light on the nature and costs of equipment repair at the Tioga surface mine. The uncon- troverted testimony was that members of Respondent's management had neither knowledge nor record informa- tion concerning repairs made by Magnum to equipment at the Tioga surface mine operation. Respondent denied that it had made any repairs itself and supplied an affida- vit to this effect as required.22 Under the circumstances I conclude that Respondent was not in possession of the requested information. I cannot therefore recommend that it be found in violation of the Act by refusing to provide information that it does not possess .23 I shall therefore recommend dismissal of this allegation. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth above, occur- ring in connection with its operations described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. 21 NLRB Y. Acme Industrial Co, 385 U.S 432 (1967); Realty Mainte- nance, 265 NLRB 1352 (1982); Des,gncrajt Jewel Industries, supra; Wash- ington Star Co, 273 NLRB 391 (1984); East Texas Fire Protection Co., supra, E I. duPont & Co., 276 NLRB 335 (1985). 22 Doubarn Sheet Metal, 243 NLRB 821 (1979) 23 NLRB v. United Brass Works, 287 F 2d 689 (4th Cir 1961); Korn Industries Y. NLRB, 389 F.2d 117 (4th Cir. 1967). ISLAND CREEK COAL CO. 861 REMEDY Having found that Respondent has engaged in unfair labor practices warranting a remedial order, I shall rec- ommend that it be ordered to cease and desist therefrom and that it take certain affirmative action designed to ef- fectuate the policies of the Act. Respondent having unlawfully failed to bargain with the Union over its decision to subcontract, I shall recom- mend that it be ordered to bargain collectively with re- spect to wages, hours, and other terms and conditions of employment, including the decision to subcontract bar- gaining unit work. I shall further recommend that it be ordered to recall from layoff, assuming work is available, those employees who would have been recalled absent Respondent's unlawful conduct and make them whole for any loss of earnings and other benefits. Earnings and benefits are to be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987). Finally, as I have found that Respondent refused to give to the Union relevant information which it re- quested for the purpose of enabling it to evaluate and pursue its grievance, I shall recommend it be ordered to furnish the Union with a complete copy of the contract between Island Creek Coal Company and Magnum Mining Comapny and cost sheets for the Tioga surface mine operation for the 18-month period immediately pre- ceding its closure in 1979. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in an industry affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All employees employed at Respondent's Tioga Mine, in the unit described in the National Bituminous Coal Wage Agreement of 1984 constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union has been the exclusive collective-bar- gaining representative of Respondent's Tioga Mine em- ployees in the unit for at least 10 years during which period the Union has been recognized as such by Re- spondent. Such recognition has been embodied in succes- sive collective-bargaining agreements the most recent of which is effective by its term through 31 January 1988. 5. By failing and refusing to bargain about subcontract- ing decisions, Respondent violated Section 8(a)(5) and (1) of the Act. 6. By failing and refusing to provide a complete copy of the contract between Island Creek Coal Company and Magnum Mining Company and cost sheets for the Tioga surface mine operation for the 18-month period immedi- ately preceding the Tioga surface mine's closure in 1979, Respondent violated Section 8(a)(5) and (1) of the Act. 7. By failing to provide a complete accounting of the repairs to the equipment at the Tioga surface mine that were performed at the direction of Magnum Mining Company, Respondent did not violate the National Labor Relations Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.]